When you move into a property, insist on an inspection which is put in writing and signed by both you and your landlord. Picture: 123RF/GEORGE MDIVANIAN
When you move into a property, insist on an inspection which is put in writing and signed by both you and your landlord. Picture: 123RF/GEORGE MDIVANIAN

Many tenants get the short end of the stick when it is time for their landlord to refund their deposit. But you can get the upper hand if you know your rights.

For starters, you must know that landlords are required by law to invest your deposit in an interest-bearing account. Even if it was not in fact done, your landlord is liable to you for all the interest the deposit would have earned if it had been properly invested in an interest-bearing account, sasy Trudie Broekmann, an attorney who specialises in consumer law.

Cape Town teacher Elouise Meyer is taking her landlord to the Rental Housing Tribunal after he presented her with an invoice for R40 instead of her deposit of R6,000 (plus interest) when she moved out after nine years.

Meyer says her landlord told her explicitly not to clean or make repairs to the property because he planned to renovate and sell.

After she vacated, he duly did repairs and renovations and passed on some of the costs to her. After challenging her landlord, he offered to give her R1,000 cash as a goodwill gesture but she rejected it.

In another case, University of Cape Town PhD student Gustav Mbeha and his flatmate Daniel Abeka had R5,000 deducted from their deposit for replacement of an old carpet and repairs to a tap.

This was despite assurances to them during their outgoing inspection that no damages would be charged to them.

Broekmann describes such unlawful deductions as “typical” of landlords who either don’t know the law or think they can flout it.

She says the deductions Abeka and Mbeha’s former landlord made are not justified because they are for maintenance, which is for the landlord’s account. “The act makes it clear that tenants are liable only for damages caused by them, not for wear and tear on furnishings and fittings.” 

The landlord cannot charge you for wear and tear that causes the geyser to burst or a pipe to leak, Broekmann says. If you stain a carpet, which has to be replaced, but the carpet was already halfway through its lifespan, the landlord can claim only 50% of the reasonable replacement cost of the carpet from you.

In Meyer’s case, her landlord did a joint inspection of the property with her when she moved in but failed to do one when she moved out.

“If the landlord doesn’t inspect the property in your presence, the Rental Housing Act says this is regarded as an acknowledgment that the property is in a good state and that your landlord will have no further claim against you [the tenant]. The landlord must then refund the full deposit with interest,” Broekmann says.

Meyer’s landlord, therefore, owes her a full deposit plus the interest that would have accrued had it been invested over nine years, Broekmann says.

Broekmann, who has served as a member of the Western Cape Rental Housing Tribunal, says that at the time the tribunal awarded an average interest rate of about 4.5% a year where the landlord failed to invest the deposit into an interest-bearing account.

Abeka and Mbeha are due their full deposit with interest of R980, she says. They are reporting their landlord to the tribunal.

Andrea van der Bergh, the assistant director of tribunal hearing support, says the failure of landlords to refund deposits and landlords giving unlawful notice are among the most common complaints that the Western Cape Rental Housing Tribunal receives from tenants.

“Although there are landlords who are ignorant of rental housing legislation and blatantly disregard the law, there are tenants who do the same,” she says.

Lawful deductions

When you cause damage to property during the lease period, the landlord is entitled to deduct “the reasonable cost” of repairing the damage. Broekmann says the receipts that provide evidence of the landlord’s repair costs must be made available to you for inspection.

“If your landlord doesn’t provide you with receipts for the repairs/replacement of items, then he is not entitled to deduct that cost from your deposit.” 

Your landlord may also deduct any unpaid rental, for example, if you stay after the lease ends, your landlord can charge you pro rata rent by dividing the monthly rental by the number of days in the month and multiplying by the days up to the last day all of your goods were removed. Your landlord can also take the last month’s electricity and water (if that is not included in the rental) from your deposit, if you, as the tenant, have not already paid it.

The balance of the deposit plus interest must be refunded to the tenant not later than 21 days after the lease ended.

Broekmann offers the following advice to tenants:

  • When you move into a property, insist on an inspection that is put in writing and signed by both you and your landlord;
  • Take date-stamped photos of every part of the property and keep them safe;
  • Record offers and undertakings by the landlord (like “we are gutting the place when you move out, so we’re not holding you liable for any damages”) in writing, for example, by e-mail to the landlord while it is still fresh in your memory; and
  • If you’re unhappy with the invoices the landlord sends you for repair costs, get two or three of your own (lower) quotes, and offer to pay the landlord the average.

The tribunal vs the courts

There are numerous reasons for using the services of the Rental Housing Tribunal instead of seeking relief from the magistrate’s court. The benefits include:

  • The service provided by the tribunal is free;
  • Complaints lodged with the tribunal must be resolved within three months;
  • The procedure is simple;
  • You don’t need to appoint an attorney to act on your behalf; and
  • Complaints may be lodged by mail, fax, or at an information office in your province. In KwaZulu-Natal, for example, 41 out of 44 local municipalities have established rental housing information offices, according to the KwaZulu-Natal tribunal’s website.